Delhi District Court
57. In Case Titled As "Lalit Kumar @ Sonu vs State Of on 28 January, 2023
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE (SOUTHEAST)03,
SAKET COURTS: DELHI
Case Registration No. 1283/2016
CNR No: DLSE010000252012
FIR No. 45/2012
Police Station: Sarita Vihar
Under Section: 392/394/397/307/34 IPC and
Section 25/27 Arms Act.
STATE
VERSUS
1. MOHD. KALIM @ MITHUA
S/o Abdul Jalil Khan
R/o J4, Haji Colony,
Jamia Nagar, New Delhi.
2. FIROJ @ KANHA
S/o Mohd. Ibrail
R/o J11, Haji Colony Chowk,
Haji Colony, Jamia Nagar,
New Delhi.
3. ALI (declared as Proclaimed Offender vide order dated
18.08.2012)
S/o Ifatmab Khan @ Ulfat
R/o Q7, Block P,
Haji Colony, Jamia Nagar,
New Delhi.
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 1....of 54
Date of institution : 13.05.2012
Date of Reserving judgment : 24.11.2022
Date of Pronouncement : 28.01.2023
Decision : Convicted
For State : Sh. Nischal Singh, Learned Addl. (Sub.) Public
Prosecutor.
For Defence: Sh. Arif Shakeel, counsel for accused Mohd. Kalim
@ Mithua and Firoz @ Kanha.
JUDGMENT
1. Accused persons were committed for trial by court of Ms. Colette Rashmi Kujur, Learned Metropolitan Magistrate06, South East District, Saket Courts, New Delhi, charge sheet having been filed against accused persons for commission of offences U/sec 394/397/307/34 IPC and Section 25/27 Arms Act.
2. On 13.05.2012, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. Metropolitan Magistrate with a view to put accused persons for trial.
3. After compliance of provisions of Section 207 Cr. P. C, Ld. MM committed case to court of Sessions.
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 2....of 54
4. Charge U/sec 392/394/397/307/34 IPC was framed against persons on 05.10.2012 on the facts that on 11.02.2012 at 11:50 PM (i.e. between Sunset and Sunrise) near Red Light Okhla Tank (i.e. Highway), accused persons alongwith their third associate Ali (already declared Proclaimed Offender vide order dated 18.08.2012) in furtherance of their common intention committed theft of motorcycle bearing No. DL3SAV 8586 belonging to complainant Rajbir and in carrying away said motorcycle, accused Mohd. Kalim @ Mithua who was laced with deadly weapon i.e. countrymade pistol (katta) voluntarily caused gun shot injury to Raj Kumar on account of which he suffered grievous injury on his left hand forearm with such intention or knowledge and under such circumstances that if accused had caused his death, they would have been guilty of offence of murder.
5. Separate charge U/sec 27 Arms Act IPC was framed against accused Mohd. Kalim @ Mithua on 21.05.2019 on the facts that on 11.02.2012 at about 11:50 PM, i.e. time between Sunset and Sunrise near Okhla Tank, he used country made pistol by firing gun shot from country made pistol at Raj Kumar at the time of incident.
6. Separate charge U/sec 25 Arms Act IPC was framed against accused Firoz @ Kanha on 21.05.2019 on the facts that FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 3....of 54 on 19.02.2012 before noon, he got recovered one country made pistol alongwith two live cartridges kept under heap of bricks lying on roadside leading towards Hazi Colony from side of MCD compose plant, opposite Indane Gas Godown, near Hazi Colony without having any authority and in contravention of notification issued by Delhi Government.
7. Brief facts on the basis of which chargesheet in the matter was filed are as follows:
8. That on 12.02.2012, an information regarding firing gun shot at Okhla Tank, Mathura Road was received through Wireless vide DD No. 2A. The said information for carrying out appropriate proceedings was assigned to SI Joginder Singh who reached at the spot alongwith Ct. Dinkar More where they met with complainant Rajbir who gave his statement.
9. Complainant Rajbir in his statement stated that he is working as Delivery boy with Dominos Pizza, Shop No. 32, Grandley Complex, New Friends Colony, New Delhi and today i.e. on 1112/02/2012 at 11:40 PM, he and his colleague Raj Kumar after their duties were going to their respective homes riding on motorcycle bearing No. DL3SAB8586. He stated that at about 11:50 PM, when they reached Red Light, Okhla Tank, his colleague Raj Kumar received a call whereupon he asked him to park the motorcycle. He stated that he took FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 4....of 54 motorcycle towards Okhla Tank and parked it after 50 yards. He stated that he went towards corner of the road to urinate and Raj Kumar after deboarding motorcycle started talking on phone. He stated that in the meanwhile, one boy came from side and started riding the bike after starting it. He stated that both of them started following the motorcycle and the said boy stopped motorcycle after some distance where two of his accomplices tried to board the motorcycle. He stated that both of them also reached there and one of the three boys fired and caused gun shot injury to his colleague Raj Kumar on his left hand on which he immediately brought him towards Mathura Road and dialed at 100 number. He stated that immediately PCR vehicle came at the spot and took his colleague Raj Kumar to Trauma Center. He stated that he can identify three boys involved in the incident and prayed for taking action against them.
10. It is stated that FIR u/sec 393/397/34 IPC was got lodged on statement of complainant and investigation was assigned to SI Joginder and Section 393 IPC was replaced with Section 394 IPC on the same day. It is stated that IO SI Joginder Singh during investigation prepared site plan at instance of complainant and procured MLC of injured Raj Kumar. It is stated that doctor concerned opined injured Raj Kumar to be fit for statement and IO recorded statement of injured and other FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 5....of 54 witnesses U/sec 161 Cr. P. C wherein complainant told that robbed motorcycle bore registration No. DL3SAV8586 and not DL3SAB8586.
11. On 13.02.2012, further investigation was assigned to SI Rajender Singh Dagar as per order of SHO. IO during course of investigation tried to arrest accused persons. It is stated that on 14.02.2012, accused Mohd. Kalim @ Mithua was apprehended at instance of secret informer who was interrogated and arrested on evidence being found against him. His arrest memo, personal search memo, conviction slip were prepared and disclosure statement was recorded. Accused Mohd. Kalim @ Mithua pointed out place of occurrence and also pointed towards the place where robbed motorcycle was parked i.e. Parking of F57, Abdul Fazal Enclave, Jamia Nagar, New Delhi. Information regarding arrest of accused was given to his family members. Accused Mohd. Kalim confessed his involvement in the incident and also told that motorcycle in question was left in parking near a house in Abdul Fazal Enclave on account of the same being punctured. It is stated that accused Mohd. Kalim got recovered TSR No. DL1RL6823 i.e. case property of FIR No. 58/2012, U/sec 382/34 IPC, PS Sun Light Colony which was taken into possession under Section 102 Cr. P. C. Accused Mohd. Kalim was produced in the court in muffled face for TIP FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 6....of 54 proceedings but he refused to undergo TIP before Ld. Link MM. Two days PC of accused Mohd. Kalim was taken who disclosed involvement of coaccused Firoz @ Kanha and Ali in his supplementary disclosure statement. Accused Firoz @ Kanha was arrested at instance of accused Mohd. Kalim.
12. IO recovered desi katta and two live rounds at instance of accused Firoz @ Kanha which were used in commission of offence in present case. IO prepared site plan of place of recovery and also drew sketch of recovered desi katta and two live rounds. Desi Katta and two live rounds were taken into possession vide separate memo and later on deposited in Malkhana of the PS. Statements of witnesses U/sec 161 Cr. P. C were recorded by IO and accused Firoz @ Kanha was produced before court who was then sent to JC.
13. Case property of present case i.e. motorcycle was taken into possession from Malkhana of PS Jamia Nagar which was lying deposited there U/sec 102 Cr. P. C and was got deposited in Malkhana of PS Sarita Vihar. Documents regarding age of accused Firoz @ Kanha were verified from School and bone ossification test of accused was got conducted as per order of the court.
14. Recovered desi katta and two live rounds were got deposited in FSL Rohini for report. It is stated that FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 7....of 54 supplementary charge sheet in this regard shall be filed in due course after obtaining sanction U/sec 39 of Arms Act. Section 307 IPC was added in the case. Accused Ali could not be arrested. It is stated that supplementary charge sheet shall be filed on his arrest. Accused Ali was declared PO by court of Ld. Area MM vide order dated 18.08.2012.
15. After completion of investigation, charge sheet was filed before court.
16. In support of its case, prosecution examined 20 witnesses in total.
17. PW-1 Rajbir deposed that he was working as a Delivery boy in Domino's Pizza at Shop No. 32-33, Grandlay Cinema Complex, New Friends Colony, New Delhi. He deposed that on intervening night of 11-12/02/2012 at about 11:30 / 12:00 p.m. (night), he alongwith his friend Raj Kumar were returning to their residence at Harkesh Nagar after finishing their job on their motorcycle. He deposed that he was driving the motorcycle belonging to Raj Kumar. He deposed that he does not remember number of the motorcycle now. He deposed that when they reached near Okhla Tank, somebody made a telephonic call on mobile phone of Raj Kumar. He deposed that he stopped the motorcycle at a distance of about 40-50 yards from Mathura Road on a side road (rough road) which goes towards Jasola near Mathura Road. He deposed that Raj Kumar FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 8....of 54 started talking on his mobile phone and he went nearby in order to urinate. He deposed that in the meantime, he saw that a third person had started motorcycle and took away the motorcycle. He deposed that he as well as Raj Kumar chased the motorcyclist. He deposed that at a little distance away, two other associates of the said person were also standing where he slowed down the motorcycle. He deposed that then, he reached there and caught hold the motorcycle. He deposed that one of the persons gave a danda blow to him as well as to Raj Kumar. He deposed that he bent in order to save himself and the danda hit on his back side. Since, he was wearing the jacket, he had pain on his back but he had not sustained any serious injury. He deposed that whereas, other person accompanying him showed a katta (country made pistol) towards them and fired the shot. The shot hit Raj Kumar on his hand, just near his elbow and caused an exit wound. He deposed that he is not able recall whether it was his left hand or right hand. Blood was oozing out from his hand. He deposed that those three persons ran away alongwith their motorcycle. He informed the police from his mobile phone at 100 number. PCR van reached there and took them to Trauma Center, AIIMS. Raj Kumar remained admitted in the hospital. Police had made inquiries from him.
18. PW-1 Rajbir further deposed that thereafter, police had brought him to the place of occurrence. He pointed out place of FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 9....of 54 occurrence to the police. He deposed that police prepared site plan of the spot vide Ex.PW-1/A and recorded his statement vide Ex.PW-1/B regarding incident. He deposed that thereafter, in the morning hours, police had shown him photographs on computer and had asked to identify assailants. He deposed that he told police that none of those persons were assailants. He deposed that after few days, as far as he can recollect within a week of the incident, accused were arrested by the police. He was called in the PS to identify the culprits. He identified two culprits, out of 4- 5 persons, which were shown to him in the PS. He identified accused Mohd. Kalim @ Mithua and accused Firoz in Court. He pointed towards accused Mohd. Kalim @ Mithua and stated that accused Mohd. Kalim @ Mithua had fired the shot which hit Raj Kumar and he also pointed towards accused Firoz and stated that he had caused danda blow to him and Raj Kumar. He deposed that he had not carefully seen the weapon i.e. katta, therefore, he can not identify the same, even if it is shown to him.
19. PW-2 HC Ramesh Singh is Duty Officer who deposed that on 12.02.2012, at about 12:35 a.m., Ct. Dinkar Morya brought a rukka sent by SI Jogender Singh for registration of FIR. He deposed that on the basis of said rukka, he had recorded present FIR by getting typed through computer operator. He deposed that typed copy of same is Ex.PW2/A. He FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 10....of 54 made endorsement to this effect vide Ex.PW2/B on the rukka. He deposed that after registration of FIR, copy of same alongwith original rukka was given to Ct. Dinkar Morya for handing over to SI Jogender Singh for further investigation. He deposed that he also received information from Trauma Center, AIIMS that injured Raj Kumar Singh S/o Hari Singh had been admitted in Trauma Center. He recorded DD No. 4-B vide Ex.PW2/C. He informed IO SI Jogender Singh about this fact.
20. PW-3 Raj Kumar deposed that he is residing with his brother Vijender Singh. He was working in Dominos Pizza, Shop No. 32-33, Grandley Complex as a Delivery Boy. On 11.02.2012, after finishing his duty work, as usual, he was going to his residence alongwith his friend Rajbir on his bike bearing No. DL-3S-AV-8586 (as far as he recollects). The time was between 11:30 p.m. to 12:00 a.m. (night). Rajbir was driving the bike. They reached near Okhla tank. He was talking on his mobile phone while sitting on the rear seat of bike. Since, he was not able to hear the mobile phone, therefore, he asked Rajbir to stop the bike on the road. He stopped the bike. He started talking on his mobile phone and in the meantime, Rajbir went a little ahead in order to urinate. While talking on his mobile phone, he also started strolling. In the meantime, he saw that somebody was taking away his bike, after starting it. He asked Rajbir as where was the bike. Both of them chased the FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 11....of 54 person, who was going away with their bike. Before they could apprehend that person who was taking away their bike, two more persons who were present there and were about to sit on the bike. On seeing them, one out of those two persons hit him and Rajbir with a danda (wooden stick) and his bike also fell down. They tried to save themselves from the danda blows and danda hit their hands. In the meantime, he tried to pick up the bike and in the meantime, one person out of those two shot a fire and the bullet shot hit him on his left hand. (Witness showed his hand showing the mark of injury and stated that the bullet had hit him on the one side and had come out from the other side of his arm.) He identified Mohd. Kalim and accused Firoz before court. He deposed that accused Firoz had hit them with danda and accused Mohd. Kalim had fired a gun shot at him. He deposed that after sustaining gun shot injury, they moved backside and both the accused persons alongwith their third associate (who is not present in Court) picked up his motorcycle and fled away. Thereafter, Rajbir informed the police at 100 number and after 15-20 minutes, police reached at the spot. They narrated the incident to the police. Police took him to hospital and Rajbir accompanied him. Rajbir had also sustained injuries with danda blows. He deposed that he brought motorcycle bearing No. DL-3S-AV-8586 which was released to him on superdari, which is parked outside Court FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 12....of 54 Complex. He exhibited photographs of the motorcycle vide Ex.PW-3/A-1 to Ex.PW-3/A-3.
21. PW-4 Ct. Arun Kumar deposed that on the intervening night of 11/12.02.2012, he received DD No. 2-A (Ex.PW4/A) from duty officer HC Ramesh Chand at about 12:00 a.m. (midnight) for delivering the same to SI Jogender who was present at F-Pocket, Sarita Vihar, on a previous call in another case. He reached there and handed over copy of DD No. 2A to SI Jogender and then came back to PS.
22. PW-5 W/Ct. Monika deposed that on the intervening night of 11/12.02.2012, she was posted at Delhi Police Control Room, PHQ from 8 p.m. to 8 a.m. On that day, at about 01:06 a.m. (night), she received a call from phone No. 9871488325 informed by Mohd. Tahir to the effect that "F-57 parking me Abdul Fazal Enclave, M/Cy No. DL3CAV 8586, Splender Black, Jisko Kuchh larke khari karke bhag gaye hain". She noted this information and filled PCR form and sent information to police station Jamia Nagar. She exhibited PCR form vide Ex.PW-5/A.
23. PW-6 Ms. Mona Tardi Kerketta, Ld. MM, Central District, Mahila Courts, Tis Hazari deposed that IO had produced accused Firoz @ Kanha and accused Mohd. Kalim @ Mithua from police custody in muffled face. She asked both accused persons as to whether they were willing to participate FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 13....of 54 in TIP but they refused to join the TIP proceedings despite warning given to them that an adverse inference may be drawn against them. She recorded statement of accused Firoz vide Ex.PW-6/A and statement of accused Mohd. Kalim vide Ex.PW-6/B. TIP proceedings of accused Firoz and Mohd. Kalim were exhibited vide Ex.PW-6/C and Ex.PW-6/D. Applications of IO were exhibited vide Ex.PW-6/E and Ex.PW- 6/F.
24. PW-7 Ct. Dinkar More deposed that on 12.02.2012, he was on emergency duty in PS alongwith SI Joginder Singh. During his duty hours at about 12:00 midnight, an information vide DD No. 2A was received regarding firing at Okhla Tank near Government Quarter. Pursuant to the information, he alongwith IO SI Joginder Singh reached at Okhla Tank near quarters. Injured had been shifted to hospital by the PCR van. One Rajbir, brother of injured met at the spot. IO had recorded statement of Rajbir and made endorsement upon the same. He deposed that statement with endorsement was given to him and sent to PS for registration of FIR. After getting FIR registered, he returned at the spot and handed over copy of FIR alongwith original rukka to IO. He deposed that thereafter, they went to Trauma Centre, AIIMS, where IO had recorded statement of injured. Thereafter, they went to PS NFC and then to PS Sunlight Colony in dossier Cell where IO had shown some FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 14....of 54 photographs of criminal to complainant but he did not identify photographs to be photo of culprit. He deposed that they returned to PS. IO had recorded his statement in this regard.
25. PW-8 ASI Arvind Kumar, Duty Officer deposed that on 12.02.2012, he was posted at PS Sunlight Colony. He deposed that on that day SI Surender Sharma had sent a rukka alongwith statement of complainant Shambhu Mehto through Ct. Arjun on basis of which, he recorded FIR No. 58 dated 12.02.2012 vide Ex.PW-8/A.
26. PW-9 Ct. Mahender Singh deposed that on 26.04.2012, he took sealed pullanda containing one katta and two live cartridges from Malkhana of PS Sarita Vihar and deposited the same with FSL, Rohini. He deposed that so long as pullanda remained in his custody, it was not tempered with by anybody in any manner. He deposed that he does not remember road certificate number.
27. PW-10 HC Manbir Singh deposed that on the intervening night of 11th/ 12th February 2012, he was posted at PS Jamia Nagar. He deposed that at about 01:15 a.m on 12.02.2012, on receipt of DD No. 6-A, he alongwith Ct. Sunil had reached at F-57, Abul Fazal Enclave. Informant Tahir met them, who informed them that three boys had run away after parking their motorcycle bearing No. DL-3S-AY-8586 in front of his house. On asking, he further stated that there was FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 15....of 54 darkness in the street and therefore, he could not see the three boys who had parked the motorcycle. He deposed that he checked the number of motorcycle from Automatch and came to know that the said motorcycle was stolen from Sarita Vihar area. He deposed that he seized the said motorcycle u/s 102 Cr.P.C and deposited the motorcycle in Malkhana vide DD No. 14-B. He identified his signatures on the seizure memo Ex.PW- 10/A. He exhibited copy of DD No. 14-B vide Ex. PW-10/B. IO SI Joginder Singh had recorded his statement u/s 161 Cr.P.C. in this case.
28. PW-11 Dr. G.A. Sunil Kumar Sharma, Associate Professor, Department of Forensic Medicine, Safdarjung Hospital deposed that on 26.03.2012, on the request Ex.PW- 11/A of SI R.S. Dagar, a Board was constituted to determine the age of accused Firoz @ Kanha. The Board was comprising of himself as Chairman, Dr. Kuldeep Singh, Dental Surgeon and Dr. Ranjan Chandra, Sr. Specialist, Radiology Department as members. Pursuant to request, on 03.04.2012, X-ray of accused Firoz @ Kanha was conducted and report vide Ex.PW-11/B was prepared by Dr. Ranjan Chandra, Sr. Specialist, Department of Radiology. He identified signatures of Dr. Ranjan as he had worked and seen him writing and signing, during the course of the duty. X-ray request form is Ex.PW-11/B-1. On the basis of X-Ray vide Ex.PW-11/B, physical examination and dental FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 16....of 54 examination, ossification report was prepared. He identified his signatures at point A, signatures of Dr. Ranjan Chandra at point B and signatures of Dr. Kuldeep Singh at point C on ossification report Ex.PW-11/C. He deposed that he had also worked with Dr. Kuldeep Singh and seen him writing and signing during course of duty. After examination of X-ray report, physical examination and dental examination, age of accused Firoz was determined and his age was found "between 20 to 22 years".
29. PW-12 Ct. Sunil Kumar deposed that on 12.02.2012, HC Manmir Singh received DD No. 6A Ex.PW-12/A, pursuant to which he alongwith HC Manmir Singh reached at House No. F-57, Abul Fazal Enclave, Jamia Nagar. One Tahir had met them at the said house. He told that 2-3 boys had parked one motorcycle bearing No. DL-3S-AV-8586 in front of his house and went away. He further told that due to darkness, he could not recognize the said boys. HC Manmir seized the said motorcycle u/s 102 Cr.P.C. vide seizure memo Ex.PW-10/A.
30. PW-13 Mohd. Tahir deposed that he does not remember the exact date and month but it was in the winter season of year 2012. He deposed that on that day, he came to his house in the late night from his workshop. After taking meals, he went to his balcony for smoking. He saw one boy was standing a motorcycle in their parking and two boys were standing in the FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 17....of 54 gali. He was asking from his neighbours about the said motorcycle as to whether the said motorcycle was belonging to any of them. Then, he asked the said boys as to who were they and why they were standing the motorcycle in the parking, they did not give any reply rather all said boys ran away from the gali. Due to some dark, he could not recognize faces of the said boys. He came down stairs in the parking and saw the said motorcycle. The motorcycle was punctured and as far as he recollected it was Splender. He does not remember now the number of motorcycle. He deposed that he can recollect the same after seeing the record. After seeing the statement in the file, he stated that the number of motorcycle was DL 3SAV 8586. He deposed that he had stated all the facts to police whatever he deposed in the Court.
31. PW-14 HC Narender Kumar deposed that on 14.02.2012, he alongwith IO / SI R.S. Dagar were present at New Friends Colony near Surya Hotel in connection with investigation of present case. One secret informer informed IO that one of the accused involved in this case would come at near Park opposite Surya Hotel. IO had informed SHO about the secret information. At about 06:30 p.m., accused Mohd. Kalim came there who was apprehended at instance of secret informer. On inquiry, they came to know his name as accused Mohd. Kalim @ Mithua. He was interrogated. Thereafter, accused FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 18....of 54 Kalim was arrested vide memo Ex.PW14/A, his personal search was conducted vide memo Ex.PW14/B and his disclosure statement was recorded vide Ex.PW14/C. Accused Mohd. Kalim pointed the place of occurrence vide pointing out memo Ex.PW14/D and also pointed out the place where he had left motorcycle after robbery vide pointing out memo Ex.PW14/E. He correctly identified accused before court.
32. PW-14 HC Narender Kumar further deposed that on 15.02.2012, he again joined investigation with IO. Accused Mohd. Kalim was produced before concerned Court of MM in muffled face and thereafter, he was taken into police custody for two days. Thereafter, accused Mohd. Kalim also pointed out the place, where he had committed one another instance of robbery of TSR near Ashram Chowk. At instance of accused Mohd. Kalim, they reached near Railway Line Harikesh Nagar and auto was recovered. Thereafter, they searched the other co- accused persons, but they were not traceable. On 16.02.2012, disclosure statement of accused Mohd. Kalim was also recorded vide Ex.PW-14/F. On 17.02.2012, at instance of accused Mohd. Kalim, they reached at jungle of Okhla Tank, behind Haji Colony from where accused Firoz @ Kanaha was arrested. Accused Firoz @ Kanaha wad interrogated and arrested vide arrest memo Ex.PW-14/G. His personal search was conducted vide memo Ex.PW-14/H and his disclosure statement Ex.PW-
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 19....of 54 14/I was recorded. Accused Firoz @ Kanaha was directed to remain in muffled face. Thereafter accused persons were produced before concerned Court. He correctly identified accused Firoz @ Kanaha before court. Accused Kalim was sent to J/C and accused Firoz was remanded for two days PC.
33. PW-14 HC Narender Kumar further deposed that on 19.02.2014, he had again joined investigation with the IO. Accused Firoz was in the police custody. At instance of accused Firoz, they reached in front of Indian Gas godown near Haji Colony (Okhala Vihar) from where he had taken out one country made pistol alongwith two live cartridges wrapped in polythene bag from the heap of bricks and accused Firoz told that it was the same weapon, which they had used while committing robbery and accused Kalim had fired with the same katta. Sketch of the katta and country made pistol and live cartridge Ex.PW-14/J was prepared. Site plan of recovery of country made pistol Ex.PW-14/K was prepared. Country made pistol and live cartridge was converted into pullanda and sealed with seal of RS and seized vide seizure memo Ex.PW-14/L. IO had also filled up FSL form and after use, seal was handed over to him. They came back to PS and case property was deposited in Malkhana. On 15.02.2012, TSR was seized vide seizure memo Ex.PW14/M at the instance of accused Mohd. Kalim. Witness correctly identified the case property produced by FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 20....of 54 MHC(M) i.e. one country made pistol alongwith live cartridge and one test fired cartridge vide Ex.P1 Collectively.
34. PW-15 HC Ved Prakash was MHC (M) at PS Jamia Nagar who deposed that on 12.02.2012, one motorcycle bearing No. DL-3SAV-8586 was deposited in Malkhana by IO. He made an entry in store room Register at Sl. No. 674 vide Ex.PW-15/A. He deposed that on 14.03.2012, aforesaid motorcycle was transferred to PS Sarita Vihar vide RC No. 13/21/12 and was handed over to Ct. Mukesh.
35. PW-16 Dr. Mukesh Patekar, Sr. Resident, Department of Medical Oncology, AIIMS deposed that on 12.02.2012, he was on duty in the Emergency and examined injured Raj Kumar vide MLC 296096 vide Ex.PW-16/A giving all the details of injury etc. He deposed that there was gun shot wound on the body of injured.
36. PW-17 Sh. V.R. Anand, Asst. Director, (Ballistic), FSL, Rohini deposed that on 26.04.2012, one sealed parcel sealed with seal of RS was received in the office of FSL, Rohini. The same was marked to him for examination. The seals on the parcel were intact and as per the specimen seal. On opening the parcel, one country made pistol .315 bore and two 8 mm/.315 inch cartridges were taken out and marked as F1, A1 and A2 respectively. On examination, he found that the country made pistol was in working order and test fire conducted successfully.
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 21....of 54 The cartridges A1 and A2 were live one and cartridge A1 was test fired through the country made pistol. The exhibits F1/A1 & A2 were firearm/ ammunition as defined under Arms Act, 1959. All the exhibits were sealed with seal of 'VRA FSL DELHI' after examination. His detailed report dated 16.08.2012 is Ex.PW-17/A. He correctly identified case property produced by MHC(M) i.e. one country made pistol alongwith one live cartridge and a fired cartridge which are already Ex.P-1(Colly).
37. PW-18 Retired SI Joginder Singh deposed that in the intervening night of 11/12.02.2012, at about 12:01 a.m., he received DD No. 2A through Ct. Arun regarding shooting at Okhla Tank. On this, he alongwith Ct. Dinkar Morey went to Okhla Tank. He met complainant Rajbir S/o Rajender over there. Rajbir got recorded his statement vide already Ex.PW- 1/B. He put his endorsement on the statement of Rajbir vide Ex.PW-18/A, prepared rukka and got FIR registered through Ct. Dinkar Morey. He got FIR registered and came back at the spot and handed over copy of FIR and original rukka to him. He prepared the site plan at the instance of complainant vide already Ex.PW-1/A. He received MLC of Raj Kumar S/o Hari Singh. He recorded statement of Raj Kumar. Rajbir was taken to PS NFC and he had been shown the dossier of criminals. Thereafter, the case was transferred to SI R.S. Dagar and he handed over the case file to MHC(R).
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 22....of 54
38. PW-19 SI R.S. Dagar deposed that on 13.02.2012, this case was assigned to him for further investigation. On 14.02.2012, while he alongwith HC Narender were present at Surya Hotel, New Friends Colony in connection with investigation of this case, a secret information regarding presence of accused Mohd. Kalim near the park opposite to Surya Hotel was received by him. Thereafter, they both alongwith secret informer went there, secret informer pointed out accused Kalim present there and at about 7:30 p.m., they apprehended accused Kalim. He interrogated accused Kalim and arrested him vide arrest memo Ex.PW-14/A. His personal search was conducted vide memo Ex.PW-14/B. He also recorded disclosure statement of accused Mohd. Kalim vide memo Ex.PW-14/C. Accused Kalim was produced before concerned Court on 15.02.2012 in muffled face. He moved an application for his TIP proceedings but accused Kalim refused to participate in the same. He obtained two days police remand of accused Mohd. Kalim. During course of police custody remand, accused Mohd. Kalim in pursuant to his disclosure statement got recovered one TSR bearing No. DL-1RL-6823 from near Harkesh Nagar Railway Track vide seizure memo Ex.PW-14/M. The said TSR was robbed by accused Kalim in the same night when present incident had happened. A separate FIR was registered in this regard. On 16.02.2012, accused FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 23....of 54 Kalim made another disclosure statement Ex.PW-14/F and on 17.02.2012 pursuant thereof he got arrested accused Firoz @ Kana (correctly identified by witness) vide arrest memo Ex.PW- 14/G whose personal search was conducted vide memo Ex.PW- 14/H. He also recorded his disclosure statement vide memo Ex.PW-14/I. Accused Firoz also pointed out place of incident vide memo Ex.PW-19/A and the place where accused persons had left the motorcycle. Accused Kalim had pointed out place of incident vide pointing out memo Ex.PW-14/D. Accused Kalim and accused Firoz had pointed out place where they had left the motorcycle vide pointing out memo Ex.PW-14/E and Ex.PW-14/F respectively. He also identified accused Kalim in Court. Accused Kalim was produced before the concerned Court and he was sent to J/C. Accused Firoz was produced before the concerned Court in muffled face. He moved application for his TIP Ex.PW-6/E but he refused to participate in the TIP vide TIP proceedings Ex.PW-6/C. He obtained his two days police custody remand. He also moved an application for TIP of accused Kalim Ex.PW-6/F but he refused to participate in the TIP vide TIP proceedings Ex.PW-6/D. He obtained two days police custody remand of accused Firoz. Pursuant to disclosure statement, accused Firoz got recovered two country made pistol and two live cartridges from the way leading to Haji Colony near godown of Indane gas from heap of FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 24....of 54 bricks. He prepared sketch of pistol and cartridges vide memo Ex.PW-14/J. He converted the said pistol and cartridges into parcel, sealed the same with seal of RS and seized them vide seizure memo Ex.PW-14/L. He had also prepared the site plan vide Ex.PW-14/K qua the place of said recovery. He had also prepared site plan for the place of recovery of TSR on 15.02.2012 vide memo Ex.PW-19/B. He had also got sent the said country made pistol and cartridges to FSL for their examination. He also recorded statements of witnesses who had joined the investigation with him. He prepared charge-sheet and submitted the same in Court. After filing charge-sheet and receiving result of FSL, he also obtained sanction u/s 39 of Arms Act after receiving result of the pistol and cartridges, submitted the same in Court. He correctly identified the case property already Ex.P-1 (Colly) i.e. one country made pistol alongwith one live cartridge and one test fired cartridge, which were recovered at the instance of accused Firoz.
39. PW-20 L.T. Hrangchan deposed that on 16.01.2013, he was posted as Addl. DCP-I South-East, Sarita Vihar. On the basis of documents of case FIR No.45/2012 u/s 394/397/307/34 IPC and u/s 25/27/54/59 Arms Act registered against accused persons Firoz @ Kanha S/o Mohd. Ibrail R/o J-11, Haji Colony Chowk, Jamia Nagar, New Delhi and another accused Mohd. Kalim @ Mithua S/o Abdul Jalil Khan R/o J-4, Haji Colony, FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 25....of 54 Jamia Nagar, New Delhi who got recovered illegal arms i.e. one country made pistol and two live cartridges, after due consideration of the documents i.e. FIR, copy of seizure memo, FSL result, he had issued sanction order u/s 39 Arms Act vide Ex.PW-20/A for prosecution of both the above named accused persons.
40. Prosecution evidence was closed on 18.04.2022.
41. On 04.06.2022, accused persons were examined under section 313 Cr.P.C wherein incriminating material appearing in evidence against accused was put to accused persons to which accused Mohd. Kalim @ Mithua stated that complainant gave false statement because he has filed a case against one Vikram Verma @ Vicky which was registered on his complaint U/sec 307/326/34 IPC and police officials registered the false case against him in connivance with complainant to pressurize him for compromise as complainant of this case is friend/disciple of Vikram Verma. He has not done anything. He stated that complainant gave false statement because he has filed a case against one Vikram Verma @ Vicky which was registered on his complaint U/sec 307/326/34 IPC and police officials registered false case against him in connivance with complainant to pressurize him for compromise as complainant of this case is friend/disciple of Vikram Verma. He has not done anything. He stated that PW-13 is planted witness by police and he is also FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 26....of 54 secret informer of police (Mukhbir of police). He stated that nobody has arrested him near Surya Hotel and in fact they have taken him from his house. He stated that no disclosure statement of him was recorded at any point of time. They took his signatures on some blank papers. PW-17 gave false report in connivance with IO. He stated that witnesses are planted witnesses and deposed falsely against him. He deposed that he is innocent and falsely implicated in this case. They have falsely implicated him in this case. He was taken from his house and falsely implicated in this case. Complainant gave false statement because he has filed a case against one Vikram Verma @ Vicky which was registered on his complaint U/sec 307/326/34 IPC and police officials registered false case against him in connivance with complainant to pressurize him for compromise as complainant of this case is friend/disciple of Vikram Verma. He has not done anything. He refused TIP because police officials had already shown him in the police station. The purpose of the TIP was infructuous because he already shown him in the police station.
42. Accused Firoz @ Khana stated that he refused TIP because police officials had already shown him in the police station. Purpose of the TIP was infructuous because he already shown him in the police station. He stated that doctor had prepared false report on the instance of IO and declared him FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 27....of 54 major but at that time he was minor. He stated that PW-13 is planted witness by police and he is also secret informer of police (Mukhbir of police). He stated that they both were acquitted in that case already and no disclosure statement of him has been recorded at any point of time. They took his signatures on some blank papers. He stated that he had not given any statement to police and no gun was recovered on his instance. In fact, they have arrested him from his house. He stated that PW-17 has given false report in connivance with IO. He deposed that witnesses are planted witnesses and falsely deposed against him. He stated that he is innocent and falsely implicated in this case. He has nothing to do with this case. He was taken from house and falsely implicated in this case. No recovery was effected from him.
43. No DE was led by accused persons.
44. I have heard arguments addressed by respective counsels and perused the record including judgments filed on behalf of accused persons.
45. Charge against both accused persons was framed for commission of offences u/s 392/394/397/307/34 IPC. Separate charge U/sec 27 Arms Act was framed against accused Mohd. Kalim @ Mithua and separate charge U/sec 25 Arms Act was framed against accused Firoz @ Kanha.
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 28....of 54
46. Now, let me analyze as to whether facts of present case are covered in definition of robbery which is punishable u/s 392 IPC.
47. Robbery is defined by Section 390 IPC. Section 390 IPC provides as under:
Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
48. In the facts of present case, it is offence of theft which for the purpose of definition of offence of robbery will cover the field.
49. In this case, PW-1 Rajbir and PW-3 Raj Kumar are star witnesses for prosecution being complainant /victim by themselves.
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 29....of 54
50. PW-1 Rajbir in his examination in chief deposed that he is working as delivery man in Domino's Pizza at Shop No. 32- 33, Grandlay Cinema Complex, NFC. He deposed that on the intervening night of 11-12/02/2012 at about 11:30 /12:00 PM (night), he alongwith his friend Raj Kumar were returning to their residence at Harkesh Nagar after finishing their job on their motorcycle belonging to Raj Kumar and he was driving the same. He deposed that when he reached near Okhla Tank, somebody made a telephonic call to Raj Kumar. He stopped motorcycle at distance of about 40-50 yards from Mathura Road on a side road which goes towards Jasola. He deposed that Raj Kumar started talking on his mobile and he went nearby for urinating. He deposed that in the meanwhile, he saw a third person started motorcycle and took away the motorcycle. He deposed that he and Raj Kumar chased motorcyclist. He deposed that at a little distance away, two other associates of the said person were also standing where he slowed down the motorcycle. Then he reached there and caught hold of the motorcycle. He deposed that one of the persons gave a danda blow to him and Raj Kumar but he bent and danda hit on his back side. He deposed that since he was wearing jacket, he had pain on his back but he did not sustain any serious injury. He deposed that other person accompanying him showed a katta to them and fired shot which hit Raj Kumar on his hand just near FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 30....of 54 his elbow. He deposed that those three persons ran away alongwith their motorcycle.
51. PW-3 Raj Kumar deposed almost on similar lines with the addition that he told number of motorcycle to be DL-3SAV- 8586.
52. Both PW-1 and PW-3 correctly identified accused persons before court and also specified that it was accused Mohd. Kalim who fired gun shot at PW-3 Raj Kumar.
53. In the facts and circumstances of present case, by taking away motorcycle belonging to PW-3 Raj Kumar without his consent, accused caused wrongful gain to themselves and wrongful loss to PW-3 Raj Kumar bringing their act squarely within meaning of Section 24 IPC which defines term dishonestly as per which whoever does anything with intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly thus, further bringing their act within purview of offence of theft as defined U/sec 378 IPC.
54. As per Section 390 IPC which defines robbery, theft is robbery if in order to committing of theft, or in committing theft, or in carrying away or attempting to carry away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or instant hurt or instant FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 31....of 54 wrongful restraint. Here, accused by their act of firing gun shot at PW-3 Raj Kumar while carrying away motorcycle of PW-3 bearing No. DL-3SAV-8586 on account of which he even suffered grievous injury (Ex. PW-16/A) can be said to have voluntarily caused fear of death or hurt to PW-1 and PW-3. It can thus be said that prosecution has been able to prove ingredients of offence U/sec 390 IPC against accused persons punishable U/sec 392 IPC. Time of commission of offence as per PW-1 and PW-3 was between sunset and sunrise and the place of incident was a road which goes towards Jasola near Mathura Road meaning thereby that the place of commission of offence was a highway which brings case of prosecution to second part of offence punishable U/sec 392 IPC.
55. Counsel for accused during course of arguments submitted that as per PW-1, he identified accused persons in Police Station and thus identification of accused persons by PW-1 is not reliable and accused be given benefit of doubt and be acquitted. He argued that even as per PW-3 in his cross- examination, accused Mohd. Kalim was shown to him in the police station. It was argued that place of incident did not have any source of light as per site plan Ex. PW-1/A. It was further argued that no empty cartridge was recovered from the spot and that no blood stains were lifted by IO from the spot. It was submitted that no blood stained clothes of injured were seized FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 32....of 54 by IO. It was argued that accused were falsely implicated in this case by complainant as complainant was friend of one Vikram Verma @ Vicky against whom accused Mohd. Kalim got lodged FIR U/sec 307/326/34 IPC and in order to pressurize accused Mohd. Kalim @ Mithua to change his statement in that case, present false case was got lodged against accused persons.
56. Perusal of record shows that both accused Mohd. Kalim @ Mithua and accused Firoz @ Kanha refused to undergo TIP as both of them claimed to have been shown to complainant (accused Firoz @ Kanha stated that he was shown to complainant in Police Station). Date of commission of offence in this case is night of 11/12.02.2012. Statement of accused Mohd. Kalim qua TIP before court was recorded on 15.02.2012 and statement of accused Firoz @ Kanha was recorded on 17.02.2012. As per PW-1, so far as he can recollect, within a week of the incident, accused persons were arrested by police and he was called in the PS to identify culprits. PW-3 in his cross-examination stated that he was called by police officials at PS Sarita Vihar after 3-4 days of the incident to identify culprits and only accused Mohd. Kalim was shown to him. Perusal of record shows that accused Mohd. Kalim was arrested on 14.02.2012 and accused Firoz @ Kanha was arrested on 17.02.2012. As per judicial record on file, PC of two days of accused Mohd. Kalim was allowed on 15.02.2012 and PC of FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 33....of 54 two days of accused Firoz @ Kanha was allowed on 17.02.2012 meaning thereby that both the accused were in police custody for two days. Accused Mohd. Kalim refused TIP on 15.02.2012 whereas accused Firoz @ Kanha refused TIP on 17.02.2012. As per PW-1 and PW-3, they identified accused persons / accused Mohd. Kalim was shown to PW-3 within a week / 3-4 days from date of incident. All this clearly shows that accused were /was got identified by IO from PW-1 and PW-3 after accused refused to undergo TIP before court as immediately after arrest of accused persons, IO moved application for TIP of accused which accused persons refused. Defence counsel did not argue or gave suggestion to prosecution witnesses particularly IO / PW-19 SI R.S. Dagar that accused were shown to complainant and PW-3 before moving application for TIP of accused persons.
57. In case titled as "Lalit Kumar @ Sonu vs State Of NCT of Delhi on 20 September, 2010 CRL.A. 711/2009", Hon'ble High Court of Delhi laid down as below:-
"17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 34....of 54 substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. Vaikuntam Chandrappa V. State FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 35....of 54 of A.P., Budhsen V. State of U.P. and Rameshwar Singh v. State of J&K)."
58. In view of law cited above, I am of the view that though in this case, IO tried to get TIP of accused conducted immediately after their arrest but accused by themselves refused to undergo TIP and showing /identification of accused persons in PS by IO was merely a precautionary step taken by IO in order to ascertain as to whether investigation is proceeding in the right direction or not. Testimony of PW-1 and PW-3 is matching in material particulars and no material discrepancy could be brought by defence in their cross-examination. No suggestion was given to PW-19 / 2 nd IO by defence that accused persons were shown to complainant and PW-3 before moving application for their TIP before Court. Defence taken by accused that accused were falsely implicated in order to pressurize accused Mohd. Kalim @ Mithua to change his statement in a case U/sec 307/326/34 IPC lodged against one Vikram Verma @ Vicky who is friend of complainant herein is not believable as no FIR number and police station of the said FIR has been put to PW-1 nor copy of the said FIR has been put to PW-1. It appears to be a sham defence taken just for lip service and not believable.
59. Defence counsel filed judgment in case titled as "Med Singh @ Medu Pehalwan Vs. State in CRL. A. No. 662/2008 FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 36....of 54 decided on 10.08.2009" on point of TIP.
60. This judgment is not applicable in facts and circumstances of present case wherein complainant / victim PW-1 and victim / PW-3 were examined before Court almost within span of one year from date of alleged incident so far as identity of accused persons is concerned particularly in the circumstances when complainant in FIR has stated that he can identify boys involved in the incident though no description of accused may have been given by complainant in FIR lodged. Further, it is not the case of prosecution that complainant and victim (PW-1 and PW-3) only had a fleeting glance of accused persons nor it was stated to be completely dark at the place of alleged incident.
61. Defence counsel further filed judgment in case titled as "Gireesan Nair & Ors. Etc. Vs. State of Kerala 2022 Live Law (SC) 955" which again is not applicable in facts and circumstances of present case as application for TIP of accused persons was moved by IO immediately on production of accused before Court.
62. So far as source of light is concerned, PW-1 in his cross-
examination conducted on behalf of accused Firoz has admitted that source of light has not been shown by IO in the site plan Ex. PW-1/A. He volunteered that but there was street light and light was also coming from the Okhla Tank. No suggestion has FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 37....of 54 been given by defence to PW-1 countering volunteer response of PW-1 in his cross-examination. PW-7 Ct. Dinkar More in his cross-examination in this regard stated that as it was dark near the spot, so IO recorded statement under street light which was at a distance of about 20 feet from the spot. If source of light is at distance of about 20 feet, it cannot be said that there was no sufficient light wherein, accused could not have been seen by complainant and injured. It may be that there may not be sufficient light wherein statement could be recorded by IO. Non giving of any suggestion to PW-1 regarding non presence of light at the spot and observation made by court as above makes objection of defence counsel in this regard redundant.
63. So far as non recovery of empty cartridge and blood stains from spot by IO, 1st IO/PW-18 in his cross-examination admitted that he had not called Crime Team at the spot. He further stated that he had not mentioned in the rukka that he made efforts to search empty cartridge at the spot. He volunteered that he might have mentioned the same in police diary. He admitted that no evidence was collected from the spot. He stated that no blood was lifted from the spot. He stated that no empty cartridge was recovered from the spot. 2Nd IO/PW-19 in his cross-examination admitted that during investigation, no blood was found on the spot and therefore, no blood sample was collected / lifted from the spot.
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 38....of 54
64. Regarding non seizure of blood stained clothes of injured, 1st IO/PW-18 in his cross-examination stated that he did not collect clothes of injured having blood stains or the bullet hole. 2Nd IO/PW-19 in his cross-examination stated that he did not collect cloth from complainant which he was wearing at the time of alleged incident.
65. In case titled as "Paras Yadav and Ors Vs. State of Bihar MANU/SC/0009 /1999", Hon'ble Supreme Court of India while commenting upon certain omissions of the Investigating Agency held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not.
66. In "Ram Bihari Yadav Vs. State of Bihar MANU/SC/0302/1998", Hon'ble Apex Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion, the circumstances relied upon by the High Court in holding that the FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 39....of 54 investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.
67. In this case, as already held that prosecution has been able to prove ingredients of offence U/sec 392 IPC against accused persons. Another corroborating circumstance which establishes incident in question which prosecution has been able to prove is MLC of injured Raj Kumar Ex. PW-16/A. On MLC of injured Raj Kumar, kind of weapon used has been specified to be Firearm and nature of injury suffered by injured has been opined to be grievous.
68. Defence counsel has tried to demolish MLC of injured Raj Kumar Ex. PW-16/A in cross-examination of PW-16. PW- 16 in his cross-examination stated that he has not measured size of wound. He further stated that he has not mentioned age of injury. He admitted that neither he had given final opinion regarding nature of injury nor it bears his signatures in that column. Defence counsel by asking question regarding final opinion of injury of injured Raj Kumar has tried to put forth defence of accused that state has not been able to prove FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 40....of 54 grievous injury caused to injured Raj Kumar.
69. IO has not cited concerned doctor as prosecution witness who gave opinion of injury of injured Raj Kumar but on MLC of injured, wounds are stated to be Firearm wounds and PW-16 in his cross-examination stated that it is very unlikely situation that injury of this kind could be termed as "Self Inflicted Injury". Possibility of self inflicted injury is ruled out in view of what has been stated by PW-16 in his cross-examination. Even in absence of examination of doctor who opined injury of injured Raj Kumar as grievous, it stands established that he suffered firearm injury and the same was not self inflicted which corroborates incident in question.
70. Despite lapses left by respective IOs in investigation, in view of law as laid down in Paras Yadav and Ors (Supra) and Ram Bihari Yadav (Supra) cases, I am of the view that as testimonies of public witnesses PW-1 and PW-3 are credible, accused persons cannot be given any benefit of lacunas left in investigation by respective IOs.
71. As already discussed, opinion of injury of victim Raj Kumar could not be proved by State on record but from MLC of victim Raj Kumar Ex.PW-16/A, it is clear that injury suffered by victim / PW-3 Raj Kumar is a fire arm injury and can in any circumstances be said to have caused hurt to PW-3 bringing case of prosecution into ambit of Section 394/34 IPC which FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 41....of 54 provides that if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person and any other person jointly concerned in committing or attempting to commit such robbery, the said person / persons can be said to have committed offence u/s 394/34 IPC. Here, both victims i.e. PW-1 and PW-3 have deposed that accused Mohd. Kalim @ Mithua fired gun shot which hit injured Raj Kumar while carrying away robbery of motorcycle belonging to PW-3 bearing No. DL-3SAV-8586 and accused Firoz @ Kanha was accompanying him at that point of time and thus this act of accused falls within purview of offence u/s 394/34 IPC. Prosecution thus can be said to have discharged its burden qua commission of offence u/s 394/34 IPC by accused persons.
72. Accused have also been charged for commission of offence u/s 397 IPC.
73. Section 397 IPC provides that if at the time of committing robbery or dacoity, offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person shall be punishable under the section.
74. Here, both PW-1 and PW-3 have identified accused Mohd. Kalim @ Mithua who fired gun shot at PW-3. Weapon of offence was later on recovered at instance of accused Firoz @ Kanha which has been proved on record by State vide FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 42....of 54 Ex.PW-14/L. At cost of repetition, injury suffered by PW-3 is fire arm injury as per MLC of injured / PW-3 Raj Kumar Ex.PW-16/A. Fire arm can not but be said to be a deadly weapon. As nature of injury suffered by PW-3 could not be proved on record by prosecution, it is only accused Mohd. Kalim @ Mithua who can be held guilty for commission of offence u/s 397 IPC as he is the person who as per PW-1 and PW-3 used deadly weapon while committing robbery of motorcycle of PW-3. As version of PW-1 and PW-3 as already discussed has been found to be trustworthy, I am of the view that State has been able to prove commission of offence u/s 397 IPC only against accused Mohd. Kalim @ Mithua and has failed to prove commission of offence u/s 397 IPC by accused Firoz @ Kanha.
75. Charge u/s 307/34 IPC has also been framed against accused persons but the said charge can not be sustained as Section 397 IPC encompasses offence u/s 307 IPC. Section 397 IPC provides that if at the time of committing robbery or dacoity, offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. Imprisonment with which such offender shall be punished shall not be less than 7 years. Section 307 IPC provides punishment for attempt to murder. Intention to cause death of PW-3 Raj Kumar while robbing motorcycle belonging FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 43....of 54 to PW-3 is implicit in act of accused Mohd. Kalim as he caused gunshot injury to PW-3 from firearm. So, Section 307 IPC in this case is implicit / inclusive in offence u/s 397 IPC. Hence, no separate conviction u/s 307 IPC of accused persons in this case can be done and accordingly, accused are acquitted for commission of offence u/s 307/34 IPC.
76. Charge for commission of offence u/s 25 Arms Act has been framed against accused Firoz @ Kanha. Seizure memo of desi katta and two live rounds at instance of accused Firoz @ Kanha has been proved on record by prosecution vide Ex.PW- 14/L. Disclosure statement of accused Firoz @ Kanha has been exhibited on record vide Ex.PW-14/I.
77. Section 25 of Indian Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of an offence. Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, there is an exception carved out by Section 27 of Indian Evidence Act which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 44....of 54
78. In case titled as Geejaganda Somaiah vs State Of Karnataka on 12 March, 2007 Appeal (crl.) 311 of 2007 , it was held as below:-
"Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act.
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16. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and Ors. V. Emperor, AIR (1947) PC 87, wherein it was held:
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 46....of 54 exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are admissible since they do not relate to the discovery of the knife in the house of the informant."
79. Condition necessary to bring Section 27 of Indian Evidence Act into operation is that discovery of a fact in consequence of information received from a person accused of any offence in custody of a police officer must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The Section seems to be based on the view that if a fact is actually discovered in FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 47....of 54 consequence of information given, some guarantee is afforded thereby that information was true and accordingly can be safely allowed to be given in evidence but clearly the extent of information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally, Section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which informant is accused. Section 27 of Indian Evidence Act requires that fact discovered embraces the place from which the object is produced and the knowledge of accused as to this, and the information given must relate distinctly to the said fact.
80. Here, accused Firoz @ Kanha in his disclosure statement Ex. PW14/I has disclosed that he can get recovered desi katta used in commission of offence recovered. Here information that desi katta can be got recovered can be proved by prosecution u/s 27 of Indian Evidence Act. Recovery of desi katta was further effected vide Ex. PW14/L. Perusal of Ex. PW14/L shows that accused allegedly brought out desi katta and two live rounds kept in a polythene concealed in a heap of bricks by removing some bricks in the said heap kept in front of Indian Gas Godown, near Haji Colony (Okhla Vihar). Now, recovery FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 48....of 54 of desi katta and two live cartridges at instance of accused can be said to be a fact discovered Under Section 27 of Indian Evidence Act.
81. Disclosure statement of accused Firoz @ Kanha was exhibited in testimony of PW14 vide Ex. PW14/I and seizure memo of country made pistol and live cartridges was exhibited in his testimony vide Ex. PW14/L. Both these documents are witnessed by PW14 HC Narender Kumar. Only two suggestions regarding non recovery of countrymade pistol and live cartridges have been given to PW14 by defence.
82. PW19 SI R. S. Dagar is 2 nd IO who recorded disclosure statement of accused Firoz @ Kanha and recovered country made pistol and two live cartridges at instance of accused. PW 19 in his crossexamination has been asked questions by defence to which he stated that prior to going for recovery of weapon, he had not called Crime Team to lift finger print from weapon in order to ascertain finger print of the user. He admitted that place of recovery was accessible to public at large and is a public way. He admitted that there are 23 Gas Agencies near place of recovery. He admitted that there are few Jhuggis not far away from place of recovery. He stated that no construction was going on near place of recovery. He stated that he had not made inquiries during investigation in order to FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 49....of 54 ascertain owner of heap of said bricks lying on the road side. He stated that he did not join any one from Gas Agencies or Jhuggis or labourers to become witness in the case. He volunteered that he had asked the passersby but no one joined the investigation. He stated that bricks were lying in the blocks but he cannot tell their numbers but it may be 70008000. He stated that he has not shown in the site plan as to from which portion of heap of brick, weapon was recovered. He volunteered that he has mentioned the same at point A in the site plan. He stated that accused had removed around 4050 bricks from the side of abovesaid heap to take out the weapon. He stated that bricks lying there appeared to be new. Thereafter, suggestions were given to PW19.
83. Defence counsel during course of arguments submitted that PW19 in his examination in chief has deposed regarding recovery of two country made pistol whereas in actual, only one country made pistol was allegedly recovered at instance of accused Firoz @ Kanha. He further argued that despite public persons available at place of recovery, IO did not join any public person as witness to alleged recovery.
84. No doubt, PW19 in his examination in chief has deposed regarding recovery of two country made pistol but in later part of his examination in chief, he has deposed regarding one pistol FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 50....of 54 only as nowhere in his examination in chief, word pistols has been used and only pistol has been used whereas regarding cartridges, word cartridges has been used in his testimony as two live cartridges were allegedly recovered at instance of accused Firoz @ Kanha. While identifying case property, PW 19 has specifically deposed regarding one country made pistol alongwith one live cartridge and one test fired cartridge. Further, sketch of country made pistol and two live cartridges has also been corroborated by PW19 in is examination in chief vide Ex. PW14/J which clearly shows that there is only one country made pistol recovered at instance of accused Firoz @ Kanha. All this shows that writing of two country made pistol in testimony of PW19 is a result of typographical error and cannot be a ground to disbelieve recovery at instance of accused Firoz @ Kanha.
85. So far as non joining of public witnesses is concerned, PW19 in his crossexamination has clearly volunteered that he had asked passersby but no one joined the investigation. It is a known fact that public persons often are reluctant to join investigation because of their fear of wastage of time and resources and it is not surprising that passersby refused to join investigation.
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86. Recovery of country made pistol and live cartridges as per cross examination of PW19 was made after accused removed around 4050 bricks from the side of abovesaid heap to take out the weapon. No doubt, place of recovery as per crossexamination of PW19 was accessible to public at large and is a public way but bringing out weapon out of heap of bricks after removing 4050 bricks from side of the heap cannot but show specific knowledge of accused Firoz @ Kanha regarding its presence at the said place. No suggestion has been given to PW19 countering answer of PW19 that accused removed around 4050 bricks from side of above said heap to take out the weapon. In these circumstances, I am of the view that State has been able to prove its case beyond reasonable doubt against accused Firoz @ Kanha so far as recovery of country made pistol and two live cartridges is concerned.
87. Country made pistol and live cartridges recovered at instance of accused Firoz @ Kanha were fire arm / ammunition as per provisions of Arms Act has been proved on record by prosecution vide report of Ballistic Expert / PW17 V. R. Anand vide Ex. PW17/A. PW17 in his examination in chief has deposed that seals on parcel were intact and as per specimen seal and on opening parcel, one country made pistol .315 bore and two 8 mm /.315 inch cartridges were taken out. No question FIR No: 45/2012 PS: Sarita Vihar Case Registration No. 1283/16 page no. 52....of 54 has been asked to PW17 regarding tempering of seal when case property was received in FSL. No material contradiction /discrepancy in testimony of PW17 could be elicited by defence. Sanction U/sec 39 of Arms Act has been proved on record by prosecution vide Ex. PW20/A.
88. From my abovemade discussion, I am of the view State has been able to prove its case against accused Firoz @ Kanha U/sec 25 of Arms Act as he got recovered one country made pistol and two live cartridges as discussed above.
89. So far as commission of offence U/sec 27 of Arms Act is concerned, usage of any arms or ammunition in contravention of Section 5 of Arms Act is inter alia punishable under the said section. Charge U/sec 27 Arms Act was framed against accused Mohd. Kalim @ Mithua. Both PW1 Rajbir and PW3 Raj Kumar have deposed that it was accused Mohd. Kalim who fired gun shot at PW3. Testimonies of PW1 and PW3 have been found to be reliable as discussed earlier. Fire arm injury has been suffered by PW3 Raj Kumar as is reflected from his MLC Ex. PW16/A. In these circumstances, I am of the view that State has been able to prove its case against accused Mohd. Kalim @ Mithua for commission of offence U/sec 27 Arms Act.
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90. In view of my abovemade discussion, I am of the view that State has been able to prove its case against accused persons for commission of offences U/sec 392/394/34 IPC. Both accused are acquitted for commission of offence U/sec 307/34 IPC. Accused Mohd. Kalim @ Mithua is further convicted for commission of offence U/sec 397 IPC and Section 27 Arms Act. Accused Firoz @ Kanha is convicted for commission of offence U/sec 25 Arms Act.
91. File be consigned to Record Room.
Dictated and Announced
in open court on 28.01.2023 (Sonu Agnihotri)
ASJ03 (South East),
Saket Courts, New Delhi
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